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Child Abuse Probes of Trans Kids’ Parents Cleared in Texas (1)

May 13, 2022, 6:45 PM

Texas’ top appeals court lifted a statewide injunction against Governor Greg Abbott’s crackdown on gender-affirming care for trans children -- with a catch.

Abbott in February directed state child welfare officials in a letter to investigate gender care for minors as potential child abuse. In Friday’s ruling, the Texas Supreme Court allowed the probes but held that the officials don’t have to undertake them and, if they do, must get a judge’s sign-off before acting on the results of any investigation.

The decision breathes new life into Abbott’s efforts by lifting the injunction but articulates the limits on his power.

“Unlike some executive orders of the governor that are afforded binding legal effect by statute, the governor’s letter cites no legal authority that would empower the governor to bind state agencies with the instruction contained in the letter’s final sentence,” the court wrote, referring to an assertion by Abbott that state agencies must adhere to an opinion issued by Texas Attorney General Ken Paxton saying gender care can constitute child abuse under state law.

Law Without Legislation

A lower court issued the temporary injunction in March, blocking any enforcement of Abbott’s directive to the Texas Department of Family and Protective Services. The judge ruled that the letter violated the separation of powers because it had the effect of a new law “without new legislation.”

The Republican-controlled Texas Legislature has twice declined to expand the statutory definition of child abuse to include medical treatments for children and teens diagnosed with gender dysphoria.

A trial in the lower court was set for July 11. Friday’s appeals court ruling, which strikes down the trial judge’s statewide injunction because it involved nonparties who are not before the court, means Abbott’s letter may be enforced during the litigation.

Read More: Texas Rule Targeting Transgender Kids Blocked by Judge For Now

The Republican governor’s efforts have set off a firestorm, as conservatives across the country take up transgender issues as a political wedge in an election year. Critics say Texas is setting the stage for families to be torn apart for treating children with gender dysphoria and that licensed professionals such as teachers, doctors and nurses were at risk of failing to report such treatment.

Interfering With Parents

In its decision Friday, the high court set limits on the Department of Family and Protective Services as well.

“DFPS’s preliminary authority to investigate allegations does not entail the ultimate authority to interfere with parents’ decisions about their children, decisions which enjoy some measure of constitutional protection whether the government agrees with them or not,” the court wrote.

Read More: New York Seeks Federal Probe of Texas Order on Transgender Kids

The ACLU focused on the parts of the ruling that helped its individual plaintiffs in the lawsuit, including a finding that Paxton also didn’t have the power to force the child welfare agency to follow Abbott’s directive.

“The Texas Supreme Court made clear that the attorney general and governor do not have the authority to order DFPS to take any action against families that support their children by providing them with the highest standards of medical care,” the group said in a statement.

Neither Abbott’s nor Paxton’s press office responded immediately to messages seeking comment on the decision.

‘Injury to a Child’

Three of the justices said the trial judge shouldn’t have blocked DFPS from probing any allegedly unnecessary medical treatments of transgender youth, because people differ strongly on the topic.

“The plaintiffs, their experts, and their supporting amici are firmly convinced that the disputed treatments are fully reversible and completely justified,” Justice Jimmy Blacklock wrote in a partial dissent joined by two colleagues. “The attorney general and the governor vehemently disagree. All involved are entitled to their opinions, but the Legislature has assigned to DFPS -- not to the governor or to the plaintiffs’ experts and amici -- the authority to investigate such matters on behalf of the state.”

Blacklock said “an injunction preemptively prohibiting the executive branch from even investigating the possibility that injury to a child may result from the disputed treatments is likely beyond the proper scope of the judicial power.”

The case is In re Greg Abbott in His Official Capacity as Governor of the State of Texas, 22-0229, Supreme Court of Texas (Austin).

(Adds detail on Abbott’s letter in first section, context on Texas legislation in second, limits on child welfare officials in third and dissent from court’s majority in fourth.)

To contact the reporters on this story:
Erik Larson in New York at elarson4@bloomberg.net;
Laurel Calkins in New York at lcalkins@bloomberg.net

To contact the editors responsible for this story:
Katia Porzecanski at kporzecansk1@bloomberg.net

Peter Jeffrey

© 2022 Bloomberg L.P. All rights reserved. Used with permission.

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